ARUN KUMAR SINHAversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 20206 of 2026

Arun Kumar Sinha
                                                            .....Applicant(s)
                                    Versus

State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)                :    Anjali, Kavita Srivastava
Counsel for Opposite Party(s)           :    G.A.

Court No. - 80
                   HON'BLE VIVEK KUMAR SINGH, J.

1. Heard learned counsel for the applicant and learned A.G.A. appearing
for the State.

2. Present application under Section 528 BNSS has been filed for
quashing the order dated 28.4.2026 passed by Additional Session Judge /
Special Judge (POCSO Act), Court No. 10, Prayagraj in S.T. No. 144 of
2023 (State vs. Anjana Sinha and another) arising out of Case Crime No.
138 of 2023, under Sections 323, 325, 376(A)(B) IPC and Sections 3B,
4(2), 3/6 of POCSO Act, Police Station Dhoomanganj, District Prayagraj.

3. It is submitted by the learned counsel for the applicant that the victim
was examined in this case on 19.7.2024 and she was cross-examined by
the defence counsel but some relevant facts could not be examined by the
defence counsel, therefore, an application was moved by the applicant on
28.4.2026 for further cross-examination of the victim, which was wrongly
and illegally rejected by the learned trial court vide order dated 28.4.2026.
Further cross-examination of the victim is necessary for just decision of
the case, therefore, impugned order dated 28.4.2026 be quashed and one
more and last opportunity may be given to the applicant for further cross-
examination of the victim.

4. Per contra, learned A.G.A. has vehemently opposed the prayer and
submitted that the victim was aged about 8 years at the time of incident
and she was aged about 10 years at the time of her examination in the trial
court. She cannot be summoned repeatedly to testify in the trial court, in
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view of Section 33(5) of POCSO Act. An ample opportunity was granted
to the defence counsel for cross-examination of the victim, which was
availed by him and the victim was cross-examined at length. After
examination of the victim / PW-1 on 19.7.2024, seven prosecution
witnesses were examined in the trial court and the case was fixed for
statements of the accused to be recorded under Section 313 Cr.P.C. The
application dated 28.4.2026 was moved after about two years from the
date of examination of the victim on 19.7.2024. A misconceived
application dated 28.4.2026 was moved by the applicant in order to cause
delay in the trial, which was rightly rejected by the learned trial court vide
order dated 28.4.2026. There is no illegality, impropriety or jurisdictional
error in the impugned order dated 28.4.2026.

5. I have heard rival submissions of learned counsel for the parties and
have perused the record as well as the impugned order dated 28.4.2026
passed by the learned trial court.

6. The principle related to recall of the witnesses under section 311 of
Cr.P.C. (corresponding Section-348 BNSS) has been settled by Hon'ble
Apex Court in the case (s) of Mohd. Khalid Versus State of West
Bengal, (2002) 7 SCC 334; Hanuman Prasad (Supra), Natasha Singh
vs. CBI, (2013) 5 SCC 741:(2013) 4 SCC (Cri) 828:2013 SCC OnLine
SC 444; Rajaram Prasad Yadav vs. State of Bihar and another, AIR
2013 SC 3081; State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2
SCC 402; State of Haryana vs. Ram Mehar and others, (2016) 8 SCC
762; Swapan Kumar Chatterjee vs. Central Bureau of Investigation,
(2019) 14 SCC 328; Varsha Garg vs. State of Madhya Pradesh and
Others, 2022 SCC OnLine SC 986 and also by this Court in
Application under Section 482 Cr.P.C. No. 274 of 2022 (Ram Nayak
Singh vs. State of U.P. & Another).

7. It is well settled by catena of decisions by the Hon'ble Apex Court that
the power under Section 311 Cr.P.C. or Section 348 BNSS as the case
may be, must be exercised with care, caution and circumspection and only
for strong and valid reasons. The recall of a witness already examined
should not be a matter of course and the discretion, given to the court in
this regard has to be exercised judicially to prevent failure of justice. The
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object of the provision as a whole is to do justice not only from the point
of view of the accused and the prosecution but also from the point of view
of an orderly society.

8. The Court is fully conscious of the position that after all the trial is
basically for the prisoners/accused and the Court should afford an
opportunity to them in the fairest manner possible. At the same time, the
Court should bear in mind that fair trial entails the interest of the accused,
the victim and the society and, therefore, the grant of fair and proper
opportunities to the persons concerned, must be ensured being a
constitutional goal, as well as a human right. Recalling of witnesses has to
be applied on the basis of judicially established and accepted principles.

9. The above observations cannot be read as laying down any inflexible
rule to routinely permit a recall on the ground that earlier correct facts
could not be brought on record. While advancement of justice remains the
prime object of law, it cannot be understood that recall can be allowed for
the asking or reasons related to mere convenience.

10. The jurisdiction under Section 528 BNSS is extraordinary and it can
be used only in such cases where there is gross injustice or clear abuse of
process of law. It can not be used to help such a person who is not
cooperating in fair trial. Such power cannot be invoked to harass the
witnesses who have already been examined or for causing delay in the
trial.

11. In the case of Mohd. Khalid vs. State of West Bengal reported in
(2002) 7 SCC 334, the Hon'ble Apex Court observed as under:-

     "9. We make it abundantly clear that if a witness is present in Court he
     must be examined on that day. The Court must know that most of the
     witnesses could attend the Court only at heavy cost to them, after keeping
     aside their own avocation. Certainly they incur suffering and loss of
     income. The meagre amount of bhatta (allowance) which a witness may
     be paid by the Court is generally a poor solace for the financial loss
     incurred by him. It is a said plight in the Trial Courts that witnesses who
     are called through summons or other processes stand at a doorstep from
     morning till evening only to be told at the end of the day that the case is
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     adjourned to another day. This primitive practice must be reformed by
     every one provided the presiding officer concerned has a commitment
     towards duty. No sadistic pleasure, in seeing how other persons
     summoned by him as witnesses are standard on account of the dimension
     of his judicial powers, can be a persuading factor for granting such
     adjournments lavishly, that too in a casual manner."

12. The relevant paragraphs of the judgment passed in the case of State
(NCT of Delhi) vs. Shiv Kumar Yadav reported in (2016) 2 SCC 402
are extracted hereunder:-

     "10. It can hardly be gainsaid that fair trial is a part of guarantee under
     Article 21 of the Constitution of India. Its content has primarily to be
     determined from the statutory provisions for conduct of trial, though in
     some matters where statutory provisions may be silent, the court may
     evolve a principle of law to meet a situation which has not been provided
     for. It is also true that principle of fair trial has to be kept in mind for
     interpreting the statutory provisions.

     11. It is further well settled that fairness of trial has to be seen not only
     from the point of view of the accused, but also from the point of view of
     the victim and the society. In the name of fair trial, the system cannot be
     held to ransom. The accused is entitled to be represented by a counsel of
     his choice, to be provided all relevant documents, to cross-examine the
     prosecution witnesses and to lead evidence in his defence. The object of
     provision for recall is to reserve the power with the court to prevent any
     injustice in the conduct of the trial at any stage. The power available with
     the court to prevent injustice has to be exercised only if the court, for
     valid reasons, feels that injustice is caused to a party. Such a finding, with
     reasons, must be specifically recorded by the court before the power is
     exercised. It is not possible to lay down precise situations when such
     power can be exercised. The legislature in its wisdom has left the power
     undefined. Thus, the scope of the power has to be considered from case to
     case. The guidance for the purpose is available in several decisions relied
     upon by the parties. It will be sufficient to refer to only some of the
     decisions for the principles laid down which are relevant for this case.

     14. In Hoffman Andreas case [Hoffman Andreas v. Inspector of Customs,
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(2000) 10 SCC 430 : 2001 SCC (Cri) 1488] , the counsel who was
conducting the case was ill and died during the progress of the trial. The
new counsel sought recall on the ground that the witnesses could not be
cross-examined on account of the illness of the counsel. This prayer was
allowed in peculiar circumstances with the observation that normally a
closed trial could not be reopened but illness and death of the counsel was
in the facts and circumstances considered to be a valid ground for recall
of witnesses. It was observed : (SCC p. 432, para 6)

      "6.Normally, at this late stage, we would be disinclined to
      open up a closed trial once again. But we are persuaded to
      consider it in this case on account of the unfortunate
      development that took place during trial i.e. the passing away
      of the defence counsel midway of the trial. The counsel who
      was engaged for defending the appellant had cross-examined
      the witnesses but he could not complete the trial because of
      his death. When the new counsel took up the matter he would
      certainly be under the disadvantage that he could not
      ascertain from the erstwhile counsel as to the scheme of the
      defence strategy which the predeceased advocate had in mind
      or as to why he had not put further questions on certain
      aspects. In such circumstances, if the new counsel thought to
      have the material witnesses further examined the Court could
      adopt latitude and a liberal view in the interest of justice,
      particularly when the Court has unbridled powers in the
      matter as enshrined in Section 311 of the Code. After all the
      trial is basically for the prisoners and courts should afford the
      opportunity to them in the fairest manner possible."

15. The above observations cannot be read as laying down any inflexible
rule to routinely permit a recall on the ground that cross-examination was
not proper for reasons attributable to a counsel. While advancement of
justice remains the prime object of law, it cannot be understood that recall
can be allowed for the asking or reasons related to mere convenience. It
has normally to be presumed that the counsel conducting a case is
competent particularly when a counsel is appointed by choice of a
litigant. Taken to its logical end, the principle that a retrial must follow on
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every change of a counsel, can have serious consequences on conduct of
trials and the criminal justice system. The witnesses cannot be expected to
face the hardship of appearing in court repeatedly, particularly in sensitive
cases such as the present one. It can result in undue hardship for the
victims, especially so, of heinous crimes, if they are required to
repeatedly appear in court to face cross-examination.

16. The interest of justice may suffer if the counsel conducting the trial is
physically or mentally unfit on account of any disability. The interest of
the society is paramount and instead of trials being conducted again on
account of unfitness of the counsel, reform may appear to be necessary so
that such a situation does not arise. Perhaps time has come to review the
Advocates Act and the relevant rules to examine the continued fitness of
an advocate to conduct a criminal trial on account of advanced age or
other mental or physical infirmity, to avoid grievance that an Advocate
who conducted trial was unfit or incompetent. This is an aspect which
needs to be looked into by the authorities concerned including the Law
Commission and the Bar Council of India.

27. It is difficult to approve the view taken by the High Court.
Undoubtedly, fair trial is the objective and it is the duty of the court to
ensure such fairness. Width of power under Section 311 CrPC is beyond
any doubt. Not a single specific reason has been assigned by the High
Court as to how in the present case recall of as many as 13 witnesses was
necessary as directed in the impugned order. No fault has been found with
the reasoning of the order of the trial court. The High Court rejected on
merits the only two reasons pressed before it that the trial was hurried and
the counsel was not competent. In the face of rejecting these grounds,
without considering the hardship to the witnesses, undue delay in the trial,
and without any other cogent reason, allowing recall merely on the
observation that it is only the accused who will suffer by the delay as he
was in custody could, in the circumstances, be hardly accepted as valid or
serving the ends of justice. It is not only matter of delay but also of
harassment for the witnesses to be recalled which could not be justified
on the ground that the accused was in custody and that he would only
suffer by prolonging of the proceedings. Certainly recall could be
permitted if essential for the just decision but not on such consideration as
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has been adopted in the present case. Mere observation that recall was
necessary for ensuring fair trial is not enough unless there are tangible
reasons to show how the fair trial suffered without recall. Recall is not a
matter of course and the discretion given to the court has to be exercised
judiciously to prevent failure of justice and not arbitrarily. While the party
is even permitted to correct its bona fide error and may be entitled to
further opportunity even when such opportunity may be sought without
any fault on the part of the opposite party, plea for recall for advancing
justice has to be bona fide and has to be balanced carefully with the other
relevant considerations including uncalled for hardship to the witnesses
and uncalled for delay in the trial. Having regard to these considerations,
we do not find any ground to justify the recall of witnesses already
examined.

28. It will also be pertinent to mention that power of judicial
superintendence under Article 227 of the Constitution and under Section
482 CrPC has to be exercised sparingly when there is patent error or gross
injustice in the view taken by a subordinate court [Jasbir Singh v. State of
Punjab, (2006) 8 SCC 294 : (2006) 3 SCC (Cri) 470, paras 10 to 14] . A
finding to this effect has to be supported by reasons. In the present case,
the High Court has allowed the prayer of the accused, even while finding
no error in the view taken by the trial court, merely by saying that
exercise of power was required for granting fair and proper opportunity to
the accused. No reasons have been recorded in support of this
observation. On the contrary, the view taken by the trial court rejecting
the stand of the accused has been affirmed. Thus, the conclusion appears
to be inconsistent with the reasons in the impugned order.

29. We may now sum up our reasons for disapproving the view of the
High Court in the present case:

      (i) The trial court and the High Court held that the accused
      had appointed counsel of his choice. He was facing trial in
      other cases also. The earlier counsel were given due
      opportunity and had duly conducted cross-examination. They
      were under no handicap;

      (ii) No finding could be recorded that the counsel appointed
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         by the accused were incompetent particularly at the back of
         such counsel;

         (iii) Expeditious trial in a heinous offence as is alleged in the
         present case is in the interests of justice;

         (iv) The trial court as well as the High Court rejected the
         reasons for recall of the witnesses;

         (v) The Court has to keep in mind not only the need for
         giving fair opportunity to the accused but also the need for
         ensuring that the victim of the crime is not unduly harassed;

         (vi) Mere fact that the accused was in custody and that he
         will suffer by the delay could be no consideration for
         allowing recall of witnesses, particularly at the fag end of the
         trial;

         (vii) Mere change of counsel cannot be ground to recall the
         witnesses;

         (viii) There is no basis for holding that any prejudice will be
         caused to the accused unless the witnesses are recalled;

         (ix) The High Court has not rejected the reasons given by the
         trial court nor given any justification for permitting recall of
         the witnesses except for making general observations that
         recall was necessary for ensuring fair trial. This observation
         is contrary to the reasoning of the High Court in dealing with
         the grounds for recall i.e. denial of fair opportunity on
         account of incompetence of earlier counsel or on account of
         expeditious proceedings;

         (x) There is neither any patent error in the approach adopted
         by the trial court rejecting the prayer for recall nor any clear
         injustice if such prayer is not granted."

13. In the case of Swapan Kumar Chatterjee (Supra), a note of caution
was sounded and the same can be deduced from paragraphs 11 and 12 of
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                                   9


the report, which are as under:-

     "11. It is well settled that the power conferred under Section 311 should
     be invoked by the court only to meet the ends of justice. The power is to
     be exercised only for strong and valid reasons and it should be exercised
     with great caution and circumspection. The court has vide power under
     this section to even recall witnesses for re-examination or further
     examination, necessary in the interest of justice, but the same has to be
     exercised after taking into consideration the facts and circumstances of
     each case. The power under this provision shall not be exercised if the
     court is of the view that the application has been filed as an abuse of the
     process of law.

     12. Where the prosecution evidence has been closed long back and the
     reasons for non-examination of the witness earlier are not satisfactory, the
     summoning of the witness at belated stage would cause great prejudice to
     the accused and should not be allowed. Similarly, the court should not
     encourage the filing of successive applications for recall of a witness
     under this provision."

14. The power to summon material witnesses under Section 348 BNSS,
which falls under Chapter XXVI containing the general provisions as to
inquiries and trials has been held to confer a very wide power on the
courts for summoning witnesses and accordingly the discretion conferred
is to be exercised judiciously as wider the power the greater is the
necessity for the application of judicial mind.

15. The power conferred has been held to be discretionary and is to enable
the court to determine the truth after discovering all relevant facts and
obtaining proper proof thereof to arrive at a just decision in the case. The
power conferred under Section 348 BNSS / 311 Cr.P.C. is to be invoked
by the court to meet the ends of justice, for strong and valid reasons and it
is to be exercised with great caution and circumspection. The
determinative factor in this regard would be whether the summoning or
recalling of the witness is in fact, essential to the just decision of the case
keeping in view that fair trial - which entails the interests of the accused,
the victim and of the society - is the main object of the criminal procedure
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and the court is to ensure that such fairness is not hampered or threatened
in any manner.

16. In State (NCT of Delhi) vs. Shiv Kumar Yadav, (2016) 2 SCC 402,
it has been held that: -

     "Certainly, recall could be permitted if essential for the just decision, but
     not on such consideration as has been adopted in the present case. Mere
     observation that recall was necessary "for ensuring fair trial" is not
     enough unless there are tangible reasons to show how the fair trial
     suffered without recall. Recall is not a matter of course and the discretion
     given to the court has to be exercised judiciously to prevent failure of
     justice and not arbitrarily. While the party is even permitted to correct its
     bona fide error and may be entitled to further opportunity even when such
     opportunity may be sought without any fault on the part of the opposite
     party, plea for recall for advancing justice has to be bona fide and has to
     be balanced carefully with the other relevant considerations including un-
     called for hardship to the witnesses and un-called for delay in the trial.
     Having regard to these considerations, there is no ground to justify the
     recall of witnesses already examined."

17. In Ratanlal vs. Prahlad Jat, (2017) 9 SCC 340, it was held that: -

     "17. In order to enable the court to find out the truth and render a just
     decision, the salutary provisions of Section 311 are enacted whereunder
     any court by exercising its discretionary authority at any stage of inquiry,
     trial or other proceeding can summon any person as witness or examine
     any person in attendance though not summoned as a witness or recall or
     re-examine any person already examined who are expected to be able to
     throw light upon the matter in dispute. The object of the provision as a
     whole is to do justice not only from the point of view of the accused and
     the prosecution but also from the point of view of an orderly society. This
     power is to be exercised only for strong and valid reasons and it should be
     exercised with caution and circumspection. Recall is not a matter of
     course and the discretion given to the court has to be exercised judicially
     to prevent failure of justice. Therefore, the reasons for exercising this
     power should be spelt out in the order."
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18. In the case of Mishrilal and others vs.State of M. P. and others
(2005) 10 SCC 701 while dealing with the case having more or less
similar facts the Hon'ble Apex Court observed as under:-

    "In our opinion, the procedure adopted by the Sessions Judge was not
    strictly in accordance with law. Once the witness was examined in-chief
    and cross- examined fully, such witness should not have been recalled
    and re-examined to deny the evidence he had already given before the
    court, even though that witness had given an inconsistent statement before
    any other court or forum subsequently. A witness could be confronted
    only with a previous statement made by him. At the time of examination
    of PW 2 Mokam Singh on 6.2.1991, there was no such previous statement
    and the defence counsel did not confront him with any statement alleged
    to have been made previously. This witness must have given some other
    version before the Juvenile Court for extraneous reasons and he should
    not have been given a further opportunity at a later stage to completely
    efface the evidence already given by him under oath. The courts have to
    follow the procedures strictly and cannot allow a witness to escape the
    legal action for giving false evidence before the court on mere
    explanation that he had given it under the pressure of the police or some
    other reason. Whenever the witness speaks falsehood in the court, and it
    is proved satisfactorily, the court should take a serious action against such
    witnesses."

19. In the case of Yakub Ismailbhai Patel vs.State of Gujarat-AIR
2004 SC 4209, in para 40 and 41 the Hon'ble Supreme Court observed as
under :-

    "40. Significantly this witness, later on filed an affidavit wherein he had
    sworn to the fact that whatever he had deposed before Court as PW-1 was
    not true and it was so done at the instance of Police.

    41. The averments in the affidavits are rightly rejected by the High Court
    and also the Sessions Court. Once the witness is examined as a
    prosecution witness, he cannot be allowed to perjure himself by resiling
    from testimony given in Court on oath. It is pertinent to note that during
    the intervening period between giving of evidence as PW-1 and filing of
    affidavit in Court later he was in jail in a narcotic case and that the
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     accused persons were also fellow inmates there"

20. In the case of Nisar Khan alias Guddu and others vs. State of
Uttaranchal (2006) 9 SCC 386 where an application was filed on behalf of
the accused under Section 311 of the Cr.P.C. and witness was recalled.
With regard to this fact the Honble Apex Court observed as under:

     "We are of the view that no reasonable person properly instructed in law
     would allow an application filed by the accused to recall the eyewitnesses
     after a lapse of more than one year that too after the witnesses were
     examined, cross-examined and discharged."

21. It is important to state here that POCSO Act is a special legislation,
which was enacted to protect children from sexual offences and for
safeguarding interests and ensuring the well-being of the child at every
stage of trial of offences under the Act. Section 33 of the POCSO Act
provides for the procedure and powers of the Special Court and reads as
under:

     "33. Procedure and powers of Special Court. - (1) A Special Court may
     take cognizance of any offence, without the Accused being committed to
     it for trial, upon receiving a complaint of facts which constitute such
     offence, or upon a police report of such facts.

     (2) The Special Public Prosecutor, or as the case may be, the counsel
     appearing for the Accused shall, while recording the examination-in-
     chief, cross-examination or re-examination of the child, communicate the
     questions to be put to the child to the Special Court which shall in turn
     put those questions to the child.

     (3) The Special Court may, if it considers necessary, permit frequent
     breaks for the child during the trial.

     (4) The Special Court shall create a child-friendly atmosphere by
     allowing a family member, a guardian, a friend or a relative, in whom the
     child has trust or confidence, to be present in the court.

     (5) The Special Court shall ensure that the child is not called repeatedly to
     testify in the court.
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     (6) The Special Court shall not permit aggressive questioning or character
     assassination of the child and ensure that dignity of the child is
     maintained at all times during the trial.

     (7) The Special Court shall ensure that the identity of the child is not
     disclosed at any time during the course of investigation or trial..."

22. A bare perusal of Section 33(5) of the Act indicates that a duty is cast
upon the Special Court to ensure that a child is not repeatedly called to
give his/her testimony before the court. The legislative intent behind this
provision is clear. It is to ensure that the child who has suffered a
traumatic experience of sexual assault is not called time and again to
testify about the same incident.

23. The Hon'ble Supreme Court in a recent judgment in the case of
Madhab Chandra Pradhan and Others vs. State of Odisha, reported in
MANU/SC/1494/2024 has held that a child witness, who has already
been examined and cross-examined at length, cannot be recalled to testify
again in the Court. Such an application cannot be allowed mechanically,
especially in trial of offences under the POCSO Act. The facts of the
present case are similar to the facts of the case of Madhab Chandra
Pradhan (supra) case. Therefore, the application moved under Section
348 BNSS / 311 Cr.P.C. cannot be allowed in view of the aforesaid
judgment.

24. Upon consideration of the aforesaid facts and also the settled law on
the issue this Court does not find any illegality in the order impugned
dated 19.4.2025. It is for the reason that in view of this Court the
application under Section 348 BNSS / 311 Cr.P.C. was preferred by the
applicant either to delay the trial or to win-over the victim, who has
already been examined and cross-examined at length. The application
under Section 348 BNSS / 311 Cr.P.C. was not a bonafide application and
the same was filed after about two years from the date of cross-
examination of the victim. Therefore, the recall application was rightly
rejected by the learned Trial Court vide order dated 19.4.2025. The
learned trial court did not commit any illegality or irregularity in rejecting
the application of the applicant.
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                                    25. The application under Section 528 BNSS lacks merit and is
                                    accordingly rejected.

                                    26. No order as to cost.

                                    27. The Registrar (Compliance) is directed to communicate this order to
                                    the Trial Court by the fastest mode through District Judge concerned.



                                                                                   (Vivek Kumar Singh,J.)
                                    May 18, 2026
                                    Lalit Shukla




Digitally signed by :-
LALIT KUMAR SHUKLA
High Court of Judicature at Allahabad